[2] DECISIONS CHALLENGED

(2.1) The Decision of the Second Defendant (Carmarthen Magistrates’ Court).

13 The decision of the Second Defendant (Carmarthen Magistrates’ Court) was communicated by letter dated 28th. March 2003 from the Clerk to the Justices for the Dyfed-Powys Commission Area, Mr. Stephen J. WHALE, which is exhibited to the Clamant’s First Affidavit and marked Exhibit RLM 4. The relevant text of the letter was short and to the point and read as follows :

“Dear Sir, further to your visit to my offices and our subsequent telephone conversation, I would confirm that I am not prepared to issue any summonses on your informations. The matter has been referred to a justice of the Peace for a final decision in the matter and he concurs with the view that summonses should not be issued in this case. The view is taken that the matters do not disclose offences known to law that can be commenced by an individual in a court of first instance.“

(my emphasis added).

14 This decision is challenged in respect of the refusal to issue summonses on the informations appertaining to the 3 interested parties (Mssrs. Blair, Straw & Hoon) both in their personal and official capacities. No challenge is made as regards the 2 informations laid against the two local Members of Parliament, Mrs. J. Lawrence MP and Mr. N. Ainger MP and as respects the charge of aiding, abetting, counselling & procuring the commission of a crime against peace.

(2.2) The Decision of the First Defendant (Judge Tim Workman).

15 The decision of the First Defendant Mr Tim Workman (The Senior District Judge (Chief Magistrate) for the Bow Street Magistrates’ Court) was attached to a letter from an administrative official (Mr. Peter D. Brunning) and dated 1 May 2003, which is exhibited to the Claimant’s First Affidavit and marked Exhibit RLM 2. The text of that Notice of Decision is as follows :

“IN THE BOW STREET MAGISTRATES’ COURT

Mr Robert L. Manson applies to me for summonses against the Prime Minister, The Rt.Hon. Mr John Straw, the Rt.Hon. Mr Geoffrey Hoon, alleging that they had committed “a crime against peace under common law and against the peace of the realm”, in that they had waged a war of aggression in violation of international treaties, agreements and assurances.

In making his application, Mr Manson has provided me with detailed particulars and an interpretation of customary international law.

I have considered whether I can be satisfied that the allegations amount to a crime recognised in English law. Mr Manson puts this on the basis that aggressive war is recognised as being against customary international law and maintains that this is incorporated into the English common law.

I am not satisfied that there is at present an international crime of waging a war of aggression.

Even if I were so satisfied, I find that I am unable to accept the proposition as(SiC) an offence against customary international law is automatically incorporated into the English common law.

In recent times, no offences have been created at common law and recent offences with an international element have all been introduced by way of statute. I am therefore not satisfied that the waging of an aggressive war is a crime known to English law and I do not propose to issue the summones.

Mr Manson will be aware of the recent creation of an International Criminal Court which might in due course become the court responsible for interpreting these issues. They are not maters within the competency of this court.

TIM WORKMAN
SENIOR DISTRICT JUDGE (CHIEF MAGISTRATE) BOW STREET MAGISTRATES’ COURT”

(my emphasis added).

(2.3) Gravamen of Decisions Challenged.

16 The essential feature of the two decisions challenged, and which is common to both, is the finding, as emphasised in the above quotations, that the offence disclosed in the informations is not one that is “known to English law”. In the decision of the First Defendant this is further developed by reference to two separable elements, vis. firstly, the finding that the offence does not exist in international law ab initio ; and secondly, that even if it did, it is not an offence that can be “incorporated” (SiC) into the common law, the clear implication being (as supported by the observations set out in the following text) that such incorporation could only be achieved by way of statute which has not happened.

17 It is not precisely clear what the reference in the Second Defendant’s statement to ‘commencement by an individual in a court of first instance’ is supposed to mean or imply, specifically no suggestion is made that the inistitution of proceedings requires some sort of procedural fiat, nor that proceedings for the offence could be inistituted by say only the DPP, and consequently no specific argument is addressed to that part of the reasoning.

18 Instead, it is respectfully submitted that taken together, and interpreting the two decisions fairly and in the round, the reasoning is best challenged by an approach which specifically deals with the following three logical aspects of the matter. Firstly, is there an offence existing under customary international criminal law described as a ‘crime against peace’ and if so how is it defined ? Secondly, can an individual natural person be criminally liable for such an offence if it can be shown that they have been sufficiently complicit in the commission thereof ? Finally, is the law of that offence, complete with the individual personal liability therefor, capable of being adopted into the Common Law, justiciable before the criminal courts “of first instance” ?

19 Accordingly, argument will be addressed pursuant to that analysis of the issues raised by the respective decisions challenged (as to which see the matters dealt with below in Part 4 under the title “The Principal Issues” ).

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